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Bombay High Court

NITIN NAGNATH MUPIDWARversusTHE STATE OF MAHARASHTRA AND ANOTHER

Disposal
DISPOSED OFF

Holding

The appeal is partly allowed: convictions under IPC 376‑AB, 376(3) and POCSO sections 4(2), 6, 8, 12 are affirmed, while the conviction under IPC 376(2)(l) is set aside.

Summary

The appellant, who ran a photo studio, was convicted by a Special Judge for raping an 11-year‑old girl, who was also described as mentally retarded, and for multiple offences under the Protection of Children from Sexual Offences (POCSO) Act. The appeal challenged the conviction on grounds that the prosecution failed to prove the victim's age, the existence of a mental disability, and that the trial court did not comply with Section 235 of the CrPC regarding hearing on sentence. The High Court examined the testimony of the victim, her mother, the school headmaster, the investigating officer and medical evidence, and held that the victim’s age and the penetrative nature of the assault were proved beyond reasonable doubt. It further held that the evidence did not establish a mental or physical disability, and therefore set aside the conviction under IPC 376(2)(l). The court upheld the convictions under IPC 376‑AB, 376(3) and POCSO sections 4(2), 6, 8 and 12, and partially allowed the appeal.

Issues considered

  • The prosecution proved that the victim was a child below the age of twelve as defined under POCSO.
  • Whether the act constituted rape under IPC sections 376‑AB, 376(2)(l) and 376(3).
  • Whether the victim suffered a mental or physical disability for the purpose of IPC 376(2)(l).
  • Whether the offences under POCSO sections 4(2), 6, 8 and 12 are proved.
  • Whether the trial court complied with Section 235 of the CrPC in hearing the appellant on the point of sentence.
  • The admissibility of the birth certificate and other documentary evidence.

Legislation cited

Subjects

  • rape
  • child sexual abuse
  • POCSO
  • IPC 376
  • mental disability
  • procedural fairness
  • evidence admissibility
  • birth certificate
  • medical evidence

Judgment

2026:BHC-AUG:5637
                                                                           3-APEAL-54-26.odt



                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 54 OF 2026
                        WITH CRIMINAL APPLICATION NO. 4226 OF 2025

          Nitin Nagnath Mupidwar
          Age : 36 years, Occu.: Agriculture,
          R/o:- Ashok Colony, Bhokar, Tq. Bhokar,
          Dist. Nanded.                                         ..APPELLANT

                VERSUS

          1. State of Maharashtra
             Through Bhokar Police Station,
             Tq. Bhokar, District Nanded.

          2. X.Y.Z.                                             ..RESPONDENTS
                                               ....
          Mr. A.D. Khot, Advocate for appellant (Appointed through Legal Aid)
          Mrs. A.S. Deshmukh, A.P.P. for respondent no.1 – State
          Mr. S.A. Ambilwade, Advocate for respondent no.2 (appointed through Legal
          Aid)
                                               ....
                                                      CORAM : RAJNISH R. VYAS, J.
                                                      DATE : 02nd FEBRUARY, 2026

          ORAL JUDGMENT :

          .           Heard Mr Khot, learned counsel appointed through Legal Aid to

          represent the appellant, Mrs Deshmukh, learned A.P.P. for the State and Mr

          Ambilwade, learned counsel appointed through Legal Aid to represent

          Respondent No.2 / victim.


          2.          This appeal takes exception to the judgment of conviction awarded

          by the Special Judge, Bhokar, in Special Case No. 13 of 2022 on 02nd May,

          2025. By the said judgment, the appellant was convicted for commission of

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offences punishable under Section 376-AB, 376(2)(l) and 376(3) of the

Indian Penal Code (hereinafter referred to as ‘I.P.C.’) and the offences

punishable under sections, 4(2), 6, 8 and 12 of the Protection of Children

From Sexual Offences Act, 2012 (hereinafter referred to as ‘the Act of 2012’).


3.         The appellant was directed to undergo rigorous imprisonment for

20 years and to pay a fine of Rs. 5,000/-, and in default to undergo rigorous

imprisonment for 3 years for the offence punishable under Section 4(2) of the

Act of 2012. He was also directed to undergo rigorous imprisonment for 20

years and to pay fine of Rs.5,000/-, and in default to suffer rigorous

imprisonment for 3 years for the offence punishable under Section 6 of the

Act of 2012. He was further directed to suffer rigorous imprisonment for 3

years and to pay fine of Rs.3,000/-, and in default to suffer rigorous

imprisonment for 6 months for the offence punishable under Section 8 of the

Act of 2012. For the offence punishable under Section 12 of the Act of 2012,

he was directed to undergo rigorous imprisonment for 1 year and to pay fine

of Rs.2,000/-, and in default to suffer rigorous imprisonment for 3 months. All

the sentenced were directed to run concurrently. In view of Section 42 of the

Act of 2012, no separate sentence was awarded for the offence punishable

under Sections 376-AB, 376(2)(l) and 376(3) of the I.P.C.


4.         In short, it is the case of prosecution that the appellant was

running a photo studio and on the date of incident, the appellant subjected


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the victim to forcible sexual intercourse in the said photo studio. According to

the prosecution, when the victim of crime raised hue and cry, PW 1 / mother

of the victim, who was searching for her, heard the said shout, and therefore,

saw from the glass door of the photo studio that pant of the victim was

removed and the appellant was removing his pant.


5.          This incident has resulted into setting the criminal law in motion.

With the help of respective counsels and after perusing the paper-book, which

was tendered by learned counsel for the appellant which he has obtained

through Legal Aid, I have scrutinised the evidence.


6.          The incident narrated above has resulted in setting the criminal

law in motion by way of registration of F.I.R. No. 151 of 2022 dated 30 th

April, 2022 against the appellant, which further resulted into arrest of the

appellant on 01st May, 2022. During the course of investigation, the clothes

of accused and victim were seized and forwarded for the chemical analysis.

Completion of investigation resulted into filing of the charge-sheet.


7.          The charge was framed against the appellant on 03rd September,

2022 for commission of offences punishable under Sections 376-AB, 376(2)

(l), 376(3) of the I.P.C. and under Sections 4, 6, 8 and 12 of the Act of 2012.

As appellant did not plead to the charge. Prosecution ,in order to bring home

the guilt, has examined total eight witnesses and has relied upon total 21

exhibits.

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8.         Since the appellant is convicted under the provisions of Act of

2012, it is necessary to see whether the prosecution has proved whether the

victim of crime was below eighteen years of age and as such a ‘child’ as

defined under Section 2(d) of the Act of 2012.


9.         PW 1 / mother of the victim, in her testimony, has stated that on

30th April, 2022 i.e. on the day of the incident, the victim was 11 years and 6

months old and was mentally retarded. She then narrated the incident. This

witness was cross-examined in which she admitted that the victim and

daughter of the appellant were friends and at the time of incident, the victim

was studying in 5th standard in a school.


10.        The victim of crime was examined as PW 5, who in her cross-

examination has not stated her date of birth.


11.        PW 8 was the Headmaster of school of the victim, who in his

evidence had stated that since 07th September, 2019 he was working on the

post of Headmaster and he had information of all the students in the school.

He stated that on 01st May, 2022, at the request of the concerned police

station, extract of school admission register was provided. The said request

letter is at Exhibit 44. He stated that the victim had taken admission in the

school when she was in first standard. He had brought all the original record

in the Court and according to him, at Sr.No.14735 name of mother, caste and

place of birth, nationality, date of birth of the victim was mentioned. The date

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of birth of the victim was 16-09-2012 and she had taken admission in the first

standard on 06-02-2017. The extract of admission register was marked at

Exhibit 56.



12.           In cross-examination, this witness had admitted that at the time of

giving admission, the birth certificate of the student is accepted, but he was

unaware whether the said procedure was followed at the time of giving

admission to the victim. He further admitted that the victim was not mentally

retarded student, but was suffering from fits only. He admitted that in the

school, admission was given to the normal students. This witness has

admitted that the school attendance register are available in market. He

denied the suggestion that he was giving false evidence. Exhibit 56 is the

certificate which was proved by the said witness, which also shows that date

of birth of the victim was 16th September, 2010.



13.           PW 7 is the Investigating Officer, who in his testimony had stated

that he had written to the Headmaster of the school for supplying the extract

of school register and had proved Exhibit 44. He also stated that he received

the school admission register extract.



14.           In the aforesaid background, the prosecution contended that same

proves the date of birth of the victim.




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15.       Per contra, learned counsel for the appellant has submitted that

the prosecution had not proved date of birth of the victim since the person

who was having first hand information i.e. mother of the victim, had not

deposed about the date of birth. He further contended that the person, who

had supplied the information either to the school or to the concerned

municipal council, was not examined.


16.       He has further contended that the birth certificate of the victim

was produced on record, however same was not exhibited, and therefore,

cannot be relied upon. He relied upon the judgment in case of Sanjiv Baidya

Vs. State of Arunachal Pradesh, reported in (2011) 1 Gauhati Law Reports

220, more particularly paragraph no.8, in which the Hon’ble High Court has

observed that it is the settled position of law that unproved or unexhibited

document cannot be treated as a piece of legal evidence and the lapse on the

part of the prosecution cannot be condoned and for that matter, prosecution

could not be allowed to prove the document on remand to the trial Court,

moreso, when the prosecution, on record, did not make any application

before the trial court for giving it chance to prove and exhibit the document

by examining the concerned witnesses.


17.       Suffice it to say that in the case in hand, the mother of victim has

stated that at the time of incident, the victim was 11 years and 6 months of

age. Further in cross-examination, a specific question was put by defence to


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the said witness, which was answered by her by stating “it is true that at the

time of incident, the victim was studying in 5th standard”. The aforesaid two

facts also get support from the testimony of PW 8 / Headmaster, who has

specifically stated that he is aware about the information given at the time of

admission of the students. He has also proved the entry in the admission

register.


18.         Not only this, PW 7 / Investigating Officer also corroborated the

version of PW 1 and PW 8 and had proved the document i.e. letter by which

the information was sought regarding date of birth of the victim. In this

background, it can be said that the prosecution has proved the age beyond

reasonable doubt since the manner in which the cross-examination was

conducted, shows that age of the victim was not seriously challenged.


19.         So far as judgment delivered by the Hon’ble Apex Court in Birka

Shiva Vs. State of Telangana reported in 2025 SCC OnLine SC 1454 is

concerned, the ratio in the said judgment cannot be disputed at all. In the

instant matter, the date of birth is duly proved by PW 1 / mother of the victim

as well as PW 8 / Headmaster and PW 7 / Investigating Officer. As far as the

judgment in case of Sanjiv Baidya (supra) is concerned, the ratio laid down

therein is also well settled and while deciding the age in the instant case, birth

certificate is not taken into consideration.




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20.        Relying on the age of victim, the Court has awarded conviction to

the appellant for commission of offence under different sections of Act of

2012. It is necessary to mention here that the appellant has been charged for

commission of offence of committing rape on a woman suffering from mental

or physical disability [Section 376(2)(l) of I.P.C.]. While deciding the question

whether the offence of rape is committed so also the offence of penetrative

sexual assault under the Act of 2012, it will have to be looked into whether

the child was suffering from mental or physical disability.



21.        Since both the issues are interlinked, it is necessary to first discuss

the testimony of the victim. PW 5 / victim, who was below twelve years at

the time of incident, in her evidence had stated that she has two brothers and

she was brought in the Court by her parents. The accused was residing

opposite to her house and the said accused had bitten her tongue and after

removing her pant, had pressed her vagina. The victim then shouted for help,

at which time her mother came who called father of the victim. She stated

that one uncle by name Vinayak came, who broke the mirror in the studio and

thereafter her mother came near her and had quarrel with the accused. She

identified the accused in the Court.



22.        In cross-examination, it was admitted by PW 5 / victim that near

her house a school is situated, so also one bakery and her father runs a


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grocery shop. She admitted that near the grocery shop of her father, one more

photo studio is situated which is of her relative. She further admitted that

near the grocery shop of her father a beauty parlor is situated and near her

house several students gather for tuition classes. On the playground of her

school, Karate classes are conducted. She further admitted that she has

deposed in the Court as per say of her parents. She denied that she was

deposing falsely.



23.        PW 1 / mother of victim deposed that on the day of incident the

victim was 11 years 6 months old and was mentally retarded. When she was

cleaning the utensils at 06:00 o’clock, her son and the victim were playing. As

she could not hear any voice of the victim, she started searching for her. She

then reached near the photo studio of the appellant and was calling the

victim, at which time the call was heard by the victim, who replied her. She

also deposed that when she proceeded towards the studio, she saw from the

glass that pant of the victim was removed and one person was also removing

his pants. She then knocked the door, but it was locked from inside, and

therefore, she raised alarm due to which one person by name Inayat came,

who broke open the door. Thereafter she took the victim near her, at which

time she was frightened and crying. The victim was taken to the house by PW

1, where she was consoled. The victim then informed her that the accused

had bitten her tongue and by removing her pant pressed the vagina. At this


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juncture it is necessary to reproduce her sentence in examination-in-chief that

“frus eyk lkaxhrys dh] ekekus iWUV dk<wu lq yk nkcys o ftHksyk pkoys-”


24.          The said witness had stated that thereafter she called her husband

and both of them went to police station where they lodged the report which

was at Exhibit 18. On the next day, the police officers visited the spot of

incident as it was shown by the witness. She stated that clothes of victim were

seized and her statement was recorded below Exhibit 19 (statement under

Section 164 of Cr.P.C.). In the said statement she had stated that the victim

had narrated to her that the accused had stated to the victim that he would

click her photographs. Thereafter he removed the pant of victim and pressed

the vagina by hand and thereafter had bitten her tongue.


25.          Relevant portions of the statement of PW 1 / mother and PW 5 /

victim, necessary to reproduce as under :-

PW 1 -       “Ekh fryk fopkj.kk dsyh vlrk] frus eyk jMr jMr] furhu ekekauh eyk] rq>k QksVks
             dk<rks vls Eg.kwu LVwMhvksr usy-s R;kauh ek>h iWaV dk<yh o ek>~;k lq dj.;kP;k fBdk.kh
             R;kus gkrkus nkcyk- R;kuarj ek>h thHk R;kus nkrkus pkoyh-”
PW 5 -       “eh oj ueqn iR;koj ek>s vkbZ] oMhy o Hkkokalg jkgrs- eh ?kjkleksj vax.kkr [ksGr
             vlrkauk furhy ekekauh eyk] rq>k QksVks dk<rks vls Eg.kqu R;kaP;k LVwMhvksr usys- R;kauh
             ek>h iWVa dk<yh o ek>~;k lq dj.;kP;k fBdk.kh R;kus gkrkus nkcyk- R;kuarj ek>h thHk
             R;kus nkrkus pkoyh- R;kuarj ek>h vkbZ eyk ?ksouw ?kjh vkyh-”


             The aforesaid testimony of PW 1 and PW 5 shows that the

appellant had pressed vagina of the victim by his hands.



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26.        Testing the aforesaid testimony in the light of evidence of PW 6 /

Medical Officer, who opined whether the appellant had committed an act

either defined under Section 376 of the I.P.C. or under Section 3 of the Act of

2012. PW 6 / Medical Officer, in his examination-in-chief, had stated that on

01st May, 2022 he received a letter from the concerned police station

regarding medical examination of the victim. He proved the said letter below

Exhibit 36. He then obtained consent of the mother of victim. The victim was

11 years old. Mother of victim had stated that accused tried to forceful sexual

assault on the victim. PW 6 examined the victim. In testimony, it was

described as under :-

           “A] Abrasion on right forearm, size of injury 2x1 c.m, swelling is
           present. Thereafter on local examination of victim, pubic hairs
           present, Labia Majora- odematous /red. Labia Minora-swelling and
           red,   Clitoris-redness/   blood   oozing    out,   Fourchette        &
           Introitus/Vagina- there is red, no finger in the vagina, hymen
           injury- present, Bleeding- mild blood oozing out, then Oedema
           present, position of tears not seen and then E/o Perineal tear if
           any- no any, Urethra -no injury, PS examination- not done as very
           painful, Anus- normal, Oral cavity- Normal, and other findings not
           any. Then I have taken the samples i.e. High vaginal swab, blood
           and urine for chemical examination. Pregnancy test not done. I
           have given provisional opinion in column no.7. Evidence of
           injuries to the genitals present, as there is signs of inflammation.
           Then evidence related to non-penetrative assault- is present, these
           are redness, swelling on Majora and Minora, Evidence of injures,
           suggestive application of force present, forceful injury on lip and

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           tongue bite. Opinion as to age of injuries and nature of injuries, all
           injuries are fresh. Results of Wet mount slide- not done. Evidence
           as to consumption being under the influence of drugs nothing.
           Then, I have given my opinion that over all findings are consistent
           with sexual assault. Accordingly, I issued medical examination
           report of alleged victim, is now shown to me, it is the same. It
           bears my signature and contents are true and correct. It is at Exh.
           37.”



27.        The aforesaid witness had proved the medical examination report

of the victim which is at Exhibit 37. In cross-examination, the suggestion put

to him was denied that the injury was fresh and within one hour to six hours

and abrasion injury and bleeding can be stopped within 10 to 15 minutes. The

other suggestions were also denied.



28.        It is necessary to mention here that the clothes of victim so also

clothes of accused were forwarded to the Regional Forensic Science

Laboratory, Nanded with a query below Exhibit 50. The examination and

report dated 16th December, 2022 below Exhibit 51 submitted by the

Regional Forensic Science Laboratory, Nanded shows that T-shirt, salwar,

jangya of the victim were forwarded, whereas full open shirt, full jeans pant,

underwear and T-shirt of the accused were also forwarded.

           The said report shows that Exh.1 i.e. T-shirt had few blood stains

of 0.1 cm to 1 cm in diameter on front portion. Exh.2 i.e. salwar had one


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blood stain of about 1 cm in diameter on front left upper portion and

appeared brushed. On Exh.3 i.e. jangya no blood was detected, whereas no

semen was detected on Exh.1 to 7. Blood detected on Exh.1, 2, 4, 5, 6 and 7

was of human.



29.        It reveals from Exhibit 51 that Exh.4 (full open shirt), Exh.5 (full

jeans pant), Exh.6 (underwear) and Exh.7 (T-shirt) were stained with blood

group ‘B’. Group of blood detected on Exh.1 and 2 could not be determined as

results were inconclusive. The blood group of accused was ‘B’, which is clear

from Exhibit 52, whereas blood group of the victim was ‘O’, which is clear

from Exhibit 53.



30.        Relying upon the aforesaid evidence and the documents, learned

A.P.P. submitted that the prosecution has proved the case beyond reasonable

doubt that there was sexual intercourse. The stand taken by prosecution was

also supported by learned counsel for Respondent No.2 / victim.



31.        Per contra, learned counsel for the appellant submitted that in fact

there was no sexual intercourse and just because the medical evidence shows

that there were certain injuries on the private part of the victim, it does not

mean that there was penetrative sexual intercourse. He submitted that if

testimony of PW 1 / mother of victim and PW 5 / victim so also statement of


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PW 1 recorded under Section 164 of the Cr.P.C. are perused, it would reveal

that what has been done is only pressing of vagina by the hands by the

accused, and therefore, it cannot be said that there was penetrative sexual

assault. He then submitted that he was wrongfully convicted for the

commission of offence punishable under Sections 376-AB, 376(2)(l) and

376(3) of the I.P.C.



32.        Learned counsel for the appellant also contended that not a single

witness, through testimony, has stated that the victim was mentally retarded,

except one i.e. PW 1 / mother of the victim. He submitted that if examination

and cross-examination of PW 8 / Headmaster is perused, it would reveal that

the victim was not mentally retarded girl, and in fact victim was studying in a

school where other students were studying and not mentally retarded. He

submitted that even the manner in which the victim had deposed before the

Court would clearly reveal that she is an intelligent girl.



33.        He further submitted that there is fundamental defect in the trial

since the mandate of Section 235 of Cr.P.C. was not honored since the

accused was not heard on the point of sentence. He submitted that even the

procedure, which is required to be adopted before recording the testimony of

the minor witness, in order to judge her intelligence, was not followed by the

trial Court. He, therefore, prays for acquittal.


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34.        With the help of respective counsels I have gone through the

testimony of PW 1, 5, 6; so also C.A. reports and the medical reports. The

testimony would reveal that the accused removed pant of the victim and also

of himself, had bitten her tongue and thereafter pressed the vagina of the

victim. In the aforesaid background, it is necessary to go through the relevant

sections for which the appellant is convicted. Section 376-AB of the I.P.C.

prescribes the punishment for rape. No doubt the prosecution has proved the

date of incident and age of the victim i.e. below 12 years but the question is

whether rape is committed or not.

           Section 375 defines rape, which means a man is said to have

committed ‘rape’ if he -

           (a)    penetrates his penis, to any extent, into the vagina, mouth,
                  urethra or anus of a woman or makes her to do so with him
                  or any other person; or
           (b)    inserts, to any extent, any object or a part of the body, not
                  being the penis, into the vagina, the urethra or anus of a
                  woman or makes her to do so with him or any other person;
                  or
           (c)    manipulates any part of the body of a woman so as to cause
                  penetration into the vagina, urethra, anus or any part of
                  body of such woman or makes her to do so with him or any
                  other person; or
           (d)    applies his mouth to the vagina, anus, urethra of a woman
                  or makes her to do so with him or any other person,




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35.        Since the accused is also convicted for commission of offence

punishable under Section 4(2) of the Act of 2012 for committing penetrative

sexual assault, it is necessary to see what is the penetrative sexual assault

which is defined under Section 3 of the Act of 2012. The said section is

somewhat similar to the definition of ‘rape’ defined under Section 375 of the

I.P.C. It also defines penetrative sexual assault as penetration of penis,

insertion to any extent any object and manipulation of any part of the body of

the child so as to cause penetration into the vagina, urethra, anus or any part

of body of the child or makes the child to do so with him or any other person.



36.        The testimony clearly shows that the accused, by removing his

pant so also the pant of victim, had taken bite of the tongue of the victim and

pressed her vagina. Thus, he was manipulating the part of body of the child so

as to cause penetration into the vagina. The reason for this is removing

clothes and bitting the tongue of the victim. Suffice it to say that had mother

of the victim not arrived at the particular point of time, the accused could

have completed the act of penetrative sexual intercourse.



37.        There is one more reason to give aforementioned findings. PW 1 /

mother of the victim has stated that when she knocked the door, it was locked

from inside by the accused and he did not open it. This Act also shows the

intention of the accused. The act clearly shows that part of the body i.e vagina


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was manipulated so as to cause penetration. In that view of the matter and in

view of testimony of PW 1 and PW 5 and medical evidence, I come to the

conclusion that offence punishable under Section 376-AB of the I.P.C. as well

as the offence punishable under Section 4(2) of the Act of 2012 are proved by

the prosecution.



38.        Coming to Section 6 of the Act of 2012, it speaks about

punishment for aggravated penetrative sexual assault. The penetrative sexual

assault gets aggravated when the said assault is committed on a child below

12 years of age. In this case, both, the age and penetrative assault are already

proved, and therefore, even conviction awarded under Section 6 of the Act of

2012 cannot be faulted with.



39.        Coming to Section 8 of the Act of 2012, it prescribes punishment

for sexual assault. Sexual assault is defined in Section 7 of the Act of 2012

which says that whoever, with sexual intent touches the vagina, penis, anus or

breast of the child or makes the child touch the vagina, penis, anus or breast

of such person or any other person, or does any other act with sexual intent

which involves physical contact without penetration is said to commit sexual

assault. In this case, testimony of PW 1 and PW 5 clearly shows that the

accused had given bite to the tongue of the victim, and therefore, it would

amount to an act involving physical contact without penetrations with sexual


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intent, and therefore, conviction under Section 8 of the Act of 2012 is also

rightly awarded.



40.        So far as Section 12 of the Act of 2012 is concerned, it provides

punishment for sexual harassment. Sexual harassment is defined under

Section 11 of the Act of 2012, which says that a person is said to commit

sexual harassment upon a child when such person with sexual intent,-

           (i)     utters any word or makes any sound, or makes any gesture
                   or exhibits any object or part of body with the intention that
                   such word or sound shall be heard, or such gesture or object
                   or part of body shall be seen by the child; or
           (ii)    makes a child exhibit his body or any part of his body so as
                   it is seen by such person or any other person;



           In this case, the pant of the child was removed by accused, and

therefore, the body of child was exhibited so that it can be seen by the

accused, and therefore, even punishment awarded under Section 12 of the

Act of 2012 cannot be faulted with.



41.        Coming to awarding conviction for the offence punishable under

Section 376(2)(l) of the I.P.C., it is necessary to mention that according to

Clause (l) of sub-section 2 of Section 376 the I.P.C., a man can be punished if

he commits rape on a woman suffering from mental or physical disability. In

this case nothing has been brought on record to show that the victim was

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suffering from mental or physical disability, and therefore, the conviction

awarded under Section 376(2)(l) of the I.P.C. cannot be sustained.



42.        So far as conviction under Section 376(3) of the I.P.C. is

concerned, it speaks that if a person commits rape on a woman under sixteen

years of age, shall be punished with rigorous imprisonment for a term which

shall not be less than twenty years, but which may extend to imprisonment

for life, which shall mean imprisonment for the remainder of that person's

natural life, and shall also be liable to fine. Since the accused has committed

offence of rape on a child below 12 years, even punishment under Section

376(3) is also properly awarded.



43         At this juncture, it is necessary to mention here that in view of

Section 42 of the Act of 2012, separate sentence was not awarded.



44.        Submission of Mr. Khot, learned counsel for the appellant that he

was not heard on the point of sentence, is not correct since the judgment of

trial court, if perused, more particularly paragraph no. 68, it cannot be said

that provision of Section 235(2) is not honored.



45.        The last contention that before testing the testimony of the victim

the mandate of law led down in case Pradeep Vs. State of Haryana, reported


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                                                                       3-APEAL-54-26.odt



in (2023) 19 SCC 221 should have been honored. Suffice it to say that in the

said judgment the Hon’ble Apex Court has stated that before recording the

evidence of minor, it is the duty of the judicial officer to ask preliminary

questions to the minor with a view to ascertain the minor is in a position to

give rational answers. So far as present case is concerned, it can be said that

the trial Court had an opportunity to see demeanor of minor witness so also

put the preliminary questions to her. Even the testimony of PW 5 / minor

witness clearly shows that she was intelligent, and therefore, the ratio of the

aforesaid cannot be made applicable since in that case there was contention

of the learned counsel of that case that there were material contradictions and

improvements in her testimony.



46.        Considering all the aforesaid aspects following order is passed :-

                                    ORDER

(I)                    Criminal appeal is partly allowed.

(II)                   Conviction awarded to the appellant by Special Judge,
                       Bhokar in Special Case No. 13 of 2022 vide judgment
                       and order dated 02nd May, 2025 for commission of
                       offence punishable under Sections 376-AB and 376(3)
                       of the Indian Penal Code and the offences punishable
                       under sections, 4(2), 6, 8 and 12 of the Protection of
                       Children    From     Sexual   Offences   Act,      2012       is
                       maintained, so also the punishment given therefor.



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(III)   However, conviction awarded to the appellant by
        Special Judge, Bhokar in Special Case No. 13 of 2022
        vide judgment and order dated 02nd May, 2025 for
        commission of offence punishable under Sections
        376(2)(l) of the Indian Penal Code is set aside and
        consequently, the appellant is acquitted of the said
        offence.

(IV)    At this juncture it is necessary to mention here that
        Mr. Khot and Mr. Ambilwade, learned counsel
        appointed through Legal Aid to represent the
        appellant and Respondent No.2, respectively have
        acted as officers of Court since they, without taking
        any adjournment, have prepared themselves fully and
        relied upon several judgments in very short time and
        assisted the Court.


(V)     In view of the same, fees of Mr. Khot and Mr.
        Ambilwade,     learned   counsel   be   quantified       at
        Rs.10,000/- each.

(VI)    Pending criminal application, if any, stands disposed
        of accordingly.




                                  ( RAJNISH R. VYAS, J. )
SSD




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